61
international obligation requires, whenever possible, full restitution (restitutio in integrum), which
consists of the restoration of the previous situation. In this regard, although the Court positively
assesses the State’s willingness to fulfill its pension obligations with respect to Mr. Muelle Flores, it
notes that more than 25 years have elapsed since the final judgment of February 2, 1993, and 19
years since the Judgment of December 10, 1999, were issued, and yet still these rulings have not
been complied with or executed. Accordingly, this Court declares that the State of Peru is responsible
for the violation of Articles 8(1), 25(1) and 25(2)(c) of the Convention, as well as of Articles 26,
5(1), 11(1), 21(1) and 21(2) thereof, to the detriment of Oscar Muelle Flores.
231. Nevertheless, the Court considers very positive the decision of the State to re-establish,
provisionally, Mr. Muelle Flores’ pension, and to restore his access to the medical care provided by
Peru’s social security system. This decision was adopted ex officio by the State, in order to guarantee
the victim access to a better quality of life, which denotes a positive attitude on the part of the
Peruvian State, in compliance with its international obligations under the American Convention.
232. Given that the State indicated that the measures adopted are provisional until this Court
delivers the corresponding Judgment, and until it has been notified thereof, it must comply with the
judgments delivered in favor of the victim and ensure the effective payment of Mr. Oscar Muelle
Flores’ pension under the terms of Decree Law No. 20530 and pursuant to current regulations on this
matter,230 within six months of notification of this Judgment. Accordingly, the judicial authorities
must implement any measures deemed necessary in the event of non-compliance by the entity
responsible for paying Mr. Muelle Flores’ pension. The Court emphasizes that, according to the
information provided by the State in the contentious-administrative proceeding, the entity
responsible for the administration and payment of pensions under Decree Law No. 20530 is the
Ministry of Economy and Finance. The amounts due for the pensions owed to Mr. Muelle Flores from
February 1991, the date on which his pension payments were suspended, and until the notification
of this Judgment, will be analyzed in the section on pecuniary damage.
233. The Court also notes that Mr. Oscar Muelle Flores is of an advanced age and suffers from several
physical ailments resulting from the deterioration of his health, including Alzheimer’s disease (supra
para. 52) and has had to rely on his family for financial support to be able to survive and pay for his
health treatment. Although the State re-established a provisional pension of S/800 in favor of the
victim, the Court orders, in equity, that after notification of this Judgment, and until such time as
compliance is achieved with the final domestic judgments, and the amount of the Mr. Muelle Flores’
pension has been calculated, taking into consideration the criteria of adequate level established by
this Court (supra para. 187), together with the amounts claimed by the representatives, the State
must grant a provisional pension of no less than two minimum salaries in Peru to cover the victim’s
basic needs for a decent life. Also, the Court orders in equity that, although the State must calculate
the amount of pension due to Mr. Muelle Flores, said amount must not be less than two minimum
salaries in Peru.
234. The Court further notes that, with the cessation of the pension payments and the suspension
of the aforementioned pension scheme, Mr. Muelle Flores found it impossible to contribute to the
corresponding social health insurance system, so that he could have access to the public health
system on the same terms as the beneficiaries of Decree Law No. 20530. The health scheme to which
he was entitled was the one provided by the social health insurance system, EsSalud, through a
contributory system that offers a full coverage plan.231
235. In fact, Article 3 of Law Nº 26790 “Law for the Modernization of Social Health Insurance” of
230
Including Law Nº 28449, Law on the New Rules of the Decree Law Nº 20530 Pension Regime (supra para. 104).
231
Cf. Brief of the State containing helpful evidence of December 11, 2018 (merits file, folio 1001).